United States District Court, E.D. Michigan, Southern Division
Sally Doe and Robert Doe, as guardians of Jane Doe, their daughter, Plaintiffs,
Jayark Corp., a foreign corporation, and Rosalco, Inc., a foreign corporation, Defendants
For Sally Doe, Robert Doe, Jane Doe, Plaintiffs: Wolfgang Mueller, Olsman, Mueller, Berkley, MI.
For Jayark Corp, Rosalco, Inc., Defendants: Erin R. Murphy, Plunkett Cooney, Bloomfield Hills, MI.
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT WITHOUT PREJUDICE  AND ORDER TO SHOW CAUSE WHY THE COURT SHOULD NOT APPOINT A NEUROPSYCHOLOGIST PURSUANT TO FEDERAL RULE OF EVIDENCE 706
JUDITH E. LEVY, United States District Judge.
This case arises out of a product liability action stemming from Jane Doe's (" Jane" ) fall from a bunk bed manufactured by defendant Jayark Corp. (" Jayark" ), and imported and distributed by defendant Rosalco, Inc. (" Rosalco" ). Plaintiffs Robert and Sally Doe are Jane's parents and legal guardians. The fall occurred on March 11, 1995, at an Art Van Furniture Store (" Art Van" ) when Jane was three years old. This suit was filed nineteen years later on April 4, 2014, when Jane was twenty-two years old. Before the Court is defendants' Motion to Dismiss and/or Motion for Summary Judgment, arguing that plaintiffs are barred from bringing this suit by the statute of limitations. Given defendants' reliance on evidence outside of the pleadings, the Court will construe this motion as a motion for summary judgment. See Fed.R.Civ.P. 12(c); Dowd v. Smoot, 2010 WL 3269898 at *1 (S.D. Ohio 2010).
A hearing was held on October 9, 2014, and oral argument was heard. At the conclusion of the hearing, the Court ordered supplemental briefing on the limited question of the impact of the prosecution of a prior lawsuit where Jane Doe served as the plaintiff on whether she was able to comprehend her legal rights at the time the suit was pending and was therefore not continuously " insane"  from the time of her fall until this suit was filed.
For the reasons set forth below, the Court denies defendants' motion for summary judgment without prejudice. The Court further orders the parties to show cause why it should not appoint a neuropsychologist pursuant to Fed.R.Evid. 706. Such appointment would be to conduct an evaluation of Jane and a review of her medical records to assist the Court in determining whether she has been continuously unable to comprehend her legal rights due to insanity from the date of the fall until one year prior to the date this case was filed.
Plaintiff Jane Doe was born on October 1, 1991.
On March 11, 1995, when Jane was three years old, she fell off a bunk bed at an Art Van Furniture store. Immediately following the fall, plaintiff was taken to the emergency room where a doctor diagnosed Jane with a " torus fracture of the left wrist [and] cervical strain." The doctor noted that, while Jane complained of neck pain, she did not appear to show any symptoms related to head trauma. (Dkt. 16-4).
Plaintiffs claim that Jane suffered a traumatic brain injury from the fall, which led to subsequent diagnoses of attention deficit disorder and/or attention deficit hyperactivity disorder, oppositional defiant disorder, bipolar disorder, anxiety and depression, learning disabilities, and Asperger's Syndrome. (Dkt. 16-7). Records indicate that Jane began to suffer from a number of behavioral problems as early as September 1997, at which point doctors' notes indicate she began to have temper tantrums and discipline problems. (Dkt. 22-3). In one visit with a doctor, Jane's family indicated that these behavioral problems began in 1996 (about one year after the fall), and had escalated over time. (Dkt. 22-4).
In May 2002, Jane had a neuropsychological assessment conducted by a clinical psychologist, Dr. Joshua Kay. Dr. Kay found that Jane had problems with verbal and social skills, visual memory, behavior, and ability to focus. (Dkt. 23-4). Dr. Kay also noted that Jane's memory fell within normal limits and that there " were no indications of depression or any pervasive developmental problem." ( Id.)
In November 2003, a second neurological consultation was conducted, during which it was noted that Jane suffered from learning disabilities that might have been caused by unnoticed seizures. (Dkt. 23-5). The osteopathic doctor conducting this exam found, furthermore, that Jane showed signs of " extremity weakness... visual-spatial immaturity, and dyspraxia," however, she also reviewed an MRI conducted in October 2003, and found that it " did not show any intracranial abnormalities." ( Id.)
On January 25, 2006, Dr. Susan Anderson conducted a " Cognitive Analysis, Academic & Language Assessment." As part of this assessment, Dr. Anderson evaluated a quantitative EEG which showed " significant abnormalities" consistent with " cortical damage, likely the result of a head injury." (Dkt. 23-6). The most significant alleged abnormalities were found in the frontal lobe of the brain, which one depends on for reasoning, planning, control of emotion, problem-solving, and language. Dr. Anderson predicted that Jane would need ongoing assistance to live outside of home as she got older. (Dkt. 23-6). In 2007, a psychological evaluation indicated that Jane had low to below average cognitive functioning and required special education support " under the educational diagnosis of Traumatic Brain Injury (TBI)" . (Dkt 23-7).
Defendants paint a very different picture of Jane. They point to evidence showing that Jane performed well in school in the years following the incident, and that she graduated from Brighton High School without having to repeat a class. She received her driver's license at the age of seventeen on her first attempt. (Dkts. 16 at 15; 16-9 at 8, 14). Jane also participated in a variety of activities throughout high school, including sports, babysitting, driving unsupervised, and working as a cashier at a McDonald's restaurant. (Dkt. 16-9 at 5-6, 17, 30). In fact, plaintiff was met with significant success as a track runner in high school. Defendants characterize her as a " typical" person of her age, who attended community college and has an active social life. (Dkt. 16 at 16-17).
Defendants submitted surveillance footage of Jane driving on a multi-lane highway to the mall with her then fiancé and her five or six year-old sister. Despite claims of memory loss, deposition testimony from an earlier lawsuit against Art Van revealed that plaintiff was able to remember important events in both the short and long-term. (Dkt. 16-9 at 20). For example, she was able to remember specific facts like how long her parents were married and her best times in track races she ran in high school. ( Id. at 30, 56).
Plaintiff turned eighteen on October 1, 2009.
On October 11, 2009, Jane's mother signed a retainer agreement with a law firm to represent Jane in a negligence action against Art Van. (Dkt. 21-3). On May, 25 2010, Jane filed a lawsuit against Art Van in her personal capacity. At no point in that suit did her lawyer, opposing counsel, or the court question whether Jane was competent to serve as the plaintiff in the case. In that lawsuit, Jane sought damages from Art Van for its alleged negligence with respect to the March 1995 fall. She also filed a legal malpractice claim against her former attorney, Michael Hatty (" ...